Judge: Lawrence Cho, Case: 19STCV27717, Date: 2023-11-17 Tentative Ruling

If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling. Please call the court no later than 4:30 p.m. on the court day before the hearing, leave a message with the court clerk at (310) 260-3501, or via e-mail at samdeptk@lasuperiorcourt.org advising that all parties will submit on the tentative ruling and waive hearing, and finally, serve notice of the Court's ruling on all parties entitled to receive service. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing personally or by Court Call.

Case Number: 19STCV27717    Hearing Date: January 5, 2024    Dept: K

CASE NAME:           METZGER v. AMERON INTERNATIONAL, et al

CASE NUMBER:     19STCV27717                                               

HEARING DATE:    1/5/23                                       

 

 

 

AMENDED TENTATIVE RULING

                                            

MOTION:      Defendants JMM’s and Dakovic’s Motions To Tax Costs

HELD:           GRANTED IN PART, DENIED IN PART

 

 

I.                Background

 

      This is an asbestos case wherein Plaintiff’s (“P”) won multi-million dollar verdicts against Defendant JMM (“JMM”) and Defendant George Dakovic and Sons (“Dakovic”).  P has filed a cost memorandum seeking $1,242,105.31 in costs.  Both Defendants now move to tax those costs. 

 

      A hearing was held on these is motions on 12/15/23, at which time this Court asked for additional briefing on Defendant Dakovic’s argument that CCP 998(h) limits expert fees to trial testimony only.  This Court has now read the supplemental briefs on this issue and analyzes it in Section IV.B.4(a) below.  Only this paragraph and that new Section are new and delineated by italicizing; all other parts of this tentative remain the same as the original tentative ruling.

     

 

II.             THRESHOLD PROCEDURAL ISSUES

 

A.    Dakovic Objection to Length of P Opposition Brief

 

      Dakovic objects to P’s 23 page Opposition Brief under CRC 3.1113(b) [opposing briefs cannot exceed 15 pages].  Dakovic is correct, but rather than striking P’s Opposition Brief in total, instead this Court strikes pages 16-23 of their Opposition Brief.

 

B.    P Objection to Timeliness of Dakovic Opening and Reply Briefs

 

      P argues that Dakovic’s Opening Brief was late and should be stricken.  Both parties agree that Dakovic’s Motion to Tax Costs was due by November 3, 2023.  According to this Court’s records, Dakovic’s Motion to Tax Costs was indeed filed on 11/9/23, which would make it late.  However, Dakovic submits proof of its good faith attempts to file their motion timely on 11/3/23 and that the Clerk’s Office rejected the filing due to a mix-up regarding which courthouse the Opening Brief should have been e-filed in (downtown where the case emanated from, or Santa Monica where the case was tried).  This Court accepts Dakovic’s efforts to timely file their Opening Brief and deems the ultimate 11/9/23 filing date to be timely. 

 

      With respect to Dakovic’s Reply Brief, P argues that under CCP §1105(b), Reply briefs are due “at least 5 court days before the hearing.”  Since the hearing was initially set for 12/1/23, 5 court days before that hearing would have been 11/22/23.  Dakovic did not file his Reply Brief until 11/27/23, which is only 3 days before the original 12/1/23 hearing date.  Dakovic counters that 5 court days before the 12/1/23 hearing was 11/24/23, which was a court holiday (day after Thanksgiving).  Dakovic then reasons that per CCP § 12a, his Reply Brief was not due until the next non-holiday day, which was 11/27/23.  Dakovic’s analysis is rejected as erroneous: five “court days” prior to 12/1/23 was 11/22/23, not as Dakovic contends, 11/24/23 as that date was an official court holiday and therefore not a “court day.”  As such, Dakovic’s Reply Brief was late filed and is hereby stricken.  Moreover, from a policy perspective Dakovic position is nonsensical:  the whole point of giving both the court and opposing counsel a minimum of 5 court days to read a Reply brief would be stood on its head if this Court were to accept Dakovic’s argument that a minimum 5 days before the hearing can actually mean 3.

 

[Note:  This Court is well aware that these procedural objections and remedies are for all practical purposes, academic.  In spite of the rules violations, this Court has in fact read all the briefs several times and, in any event, the struck portions may simply be re-raised by counsel orally, as in any hearing.  Rather than go through the pointless exercise of rendering a tentative opinion that would have been written without consideration of the struck arguments only to have to revise the opinion after such struck portions are orally raised at the hearing, this tentative takes into consideration all the points and arguments raised by the parties.]

 

 

III.           JMM’s MOTION TO TAX COSTS

 

A.    Item 1: Filing and Motion Fees:  ($2,357.80)

 

JMM argues that filing fees should be taxed in the amount sought because those filing

fees related to other defendants.  In essence, JMM argues that costs must be apportioned amongst defendants such that each defendant is only responsible for the litigation costs expended against them.  While this theory has some logical appeal, there simply is no basis in law for this apportionment theory.  Perhaps the legislature decided as a practical matter that apportionment would be too difficult to accomplish and therefore mandated that all reasonable and necessary costs to the litigation are to be jointly and severally liable amongst the non-prevailing parties. 

 

            This item of taxation sought is DENIED. 

 

 

B.    Item 4: Deposition Costs ($49,123.34)

 

JMM attacks various witness deposition costs as unnecessary.  This Court agrees with P

that these disputed deposition costs were, when looked upon from their pre-trial vantage point,  reasonable and necessary for P to undertake.  However, P’s admit that their $80,268.28 sought under this category include improper cancellation fees.  Thus, this Court will GRANT JMM’s motion to tax this category by $850, thereby leaving a net deposition cost of $79,418.28 to be levied on defendants.

 

 

C.    Item 5:  Service of Process ($403.65)

 

P seeks to tax this Item on the previously rejected theory of apportionment amongst

defendants.  As there is no apportionment under the law, this proposed taxation is DENIED.

 

 

 

D.    Item 8:  Expert Fees ($111,762.29)

 

As P points out, they do not seek these expert fees against JMM as there was no CCP §

998 offer justifying the award of these fees.  They are being sought against D Dakovic as there was a CCP § 998 offer to Dakovic which it rejected and failed to achieve a better result at trial.    Since these costs are not being sought against JMM, there is no need to tax these costs for JMM.  DENIED.

 

 

E.     Item 16: Other:  (Trial Tech Support of $8,162.50; Prejudgment Interest of  $993,815.93)

 

In a complicated trial such as this one that lasts over 5 weeks and included testimony of

over 20 witnesses, including the critical video testimony of decedent John Metzger, P’s use of Threadeo to present and sync such testimony was reasonable and necessary for this trial.  Taxation of Threadeo is DENIED.

 

            JMM’s motion to tax prejudgment interest is also DENIED as moot since P is not seeking this cost against JMM. 

 

 

 

 

IV.          DEFENDANT DAKOVIC MOTION TO TAX COSTS

 

            Unlike JMM, there was a § 988 offer to compromise issued to defendant Dakovic which was declined.  P received a judgment in excess of the §998 offer and therefore are entitled to the

§ 998 costs of prejudgment interest and expert fees.

 

A.    Validity of P’s § 998 Offers

 

1.     2/25/20 First Offer

 

            P served 2 separate § 998 offers to compromise, the first being on 2/25/20 for $499,999 which was rejected by Dakovic.  Dakovic argues that this offer is not valid because (i) it had been superseded by P’s second § 998 offer on 11/23/21; (ii) the original offeror, John Metzger passed away prior to trial; and (iii) the offer was premature as it was made only 4 months after Dakovic answered and done so without providing information regarding offsets from other settling parties. 

 

            This Court agrees that the second 2021 offer superseded the initial 2020 offer.  Moreover, John Metzger’s death, and more importantly the subsequent filing of an amended complaint, both served to invalidate the initial offer.  However, this Court rejects the argument that 2020 initial offer was premature; the information regarding exposure was within the possession of Dakovic and its employees prior to the deposition and a party does not need to know the amount of offsets to be able to evaluate a settlement offer. 

 

2.     11/23/21 Offer

 

Dakovic attacks the 2nd § 998 offer (also for $499,999) as being invalid because it was a

“joint” offer, meaning that this offer was made on behalf of all 3 plaintiffs without allocating how much each plaintiff was to get from the offer amount.  Dakovic relies upon Gilman v. Beverly California Corp. (1991) 231 Cal.App.3d 121, and Hurlbut v. Sonora Community Hospital (1989) 207 Cal.App.3d 388, both of which hold that such joint offers are void ab initio because it does not allow the offeree to individually weigh the offer as to each plaintiff.

 

            P instead cites to Stallman v. Bell (1991) 235 Cal.App.3d 740 and Gonzalez v. Lew (2018) 20 Cal.App.5th 155, both of which upheld joint settlement offers as valid.  After having reviewed the authority cited by the parties, this Court concludes that the analysis under Gonzales is the better one, not only because it is the most recent, but because that opinion carefully analyzed the caselaw history on this issue (including Gilman and Hurlbut).  Gonzales, 20 Cal.App.5th 161-172.  For sure, Gonzales does not hold that joint plaintiff offers are always valid; it only holds that they are not always invalid, as Dakovic now urges this Court.  Gonzales stands for the proposition that if the facts of a particular joint offer can readily show whether the plaintiffs recovered more from the jury than their joint offer, the joint offer should be recognized.  In Gonzales, the heirs of the decedent jointly offered that defendant to settle for $1.5M and the jury awarded a judgment for those joint plaintiffs of more than $2.6M.  Id. at 170.  Here, the joint offer by all 3 plaintiffs was for $499,999 and the jury awarded those plaintiffs collectively the net amount of $2.9M, plainly proving that plaintiffs obtained a more favorable verdict at trial than the joint settlement offer.  In finding the validity of this joint offer, this Court agrees with Gonzales’ final analysis that “[i]f plaintiffs with disparate claims want to make a global settlement offer which would put an end to the litigation at hand (and work out the details among themselves), they should be encouraged to do so.”  Id. at 172.

 

 

B.    Specific Cost Items

 

1.     Item 1: Filing and Motion Fees ($3,577.73)

 

            For the same reasons this Court rejected JMM’s argument that costs should be apportioned amongst defendants, this Court also rejects this same argument from Dakovic. Motion DENIED.

 

2.     Item 4: Deposition Costs ($56,007.41)

 

            Again, Dakovic’s argument that it should not be responsible for deposition costs incurred that did not relate to P’s prosecution of their action against Dakovic is rejected.  Costs are mandated to be awarded to a prevailing plaintiff against all losing defendants no matter which defendant was prejudiced by which particular cost.  However, Dakovic is only responsible for the deposition costs incurred after it rejected P’s 11/23/21 offer (with the exception of prejudgment interest which is discussed below).  To the extent Dakovic can prove to this Court at the hearing which of the deposition costs sought by P’s pre-dated their 11/23/21 § 998 offer, those costs will be taxed.  Otherwise, their Motion to Tax will be DENIED as to this item.    

 

3.     Item 5: Service of Process ($232.90)

 

            See above re: apportionment of costs.  Motion DENIED.

 

4.     Item 8: Expert Witness Fees ($114,354.79)

 

            As the § 998 offer was found valid, expert witness fees are awardable so long as they were incurred after 11/23/21.  Motion DENIED.

 

a.     Gov’t Code § 68092.5

 

            CCP § 998(h) states that expert fees “shall not exceed those specified in Section 68092.5 of the Government Code.”  That Section in turn states that expert witnesses shall be paid for the “actual time consumed in the examination of that witness by any party attending the action or proceeding.”  Gov’t Code, § 68092.5.  From this, Defendant Dakovic argues that Plaintiff’s proposed expert fees be taxed to the extent that any hours requested were for anything other than actual trial testimony. 

 

            While Defendant’s position is a reasonable reading of the plain language of those statutes, this exact interpretation has been rejected by the Court of Appeals in Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 123.  That court interpreted

§ 68092.5 not to mean that experts may be limited to just the time expended for trial testimony only, but rather “that any fees charged for trial time must not exceed the expert’s normal rate.”  Id.  As part of its reasoning, Santantonio cited to CCP § 998(c)(1) which expressly permits expert fee recovery not only for trial testimony given, but also for time expended in “preparation for trial.”  Id.  Indeed, Santantonio went as far as to say that such expert’s trial preparation costs incurred are compensable “even if they do not actually testify.”  Id. at 124. 

 

            Following Santantonio, as this Court must, Dakovic’s proposed taxation for expert witness preparation fees must be DENIED. 

 

 

 

 

 

 

 

 

 

 

 

5.     Item 16: Other [prejudgment interest & Threadeo AV services] ($1,001,978.43)

 

            Prejudgment interest will be awarded starting after 2/25/20, the date of the first

§ 998 offer, per Ray v. Goodman (2006) 142 Cal.App.4th 83, 91 (when P awarded more than both prior § 998 offers to defendant, prejudgment interest begins to run from the “first offer”).

 

            As set forth above, P’s Threadeo costs were reasonable and necessary.  DENIED.

 

 

 

 

V.   CONCLUSION

 

            Defendant JMM Motion to Tax P’s Costs is GRANTED in the amount of $850, resulting in a net cost award against JMM as follows:  (rounded off to the nearest dollar) 

 

Item 1:            $7,280

Item 2:             $4,873

Item 4:           $79,418

Item 5:             $   637

Item 11:         $29,144

Item 14:          $3,570

Item 16:          $8,163

__________________

TOTAL       $133,085

 

 

            For Defendant Dakovic, its motion to tax costs is GRANTED in the amount of $850 for including improper deposition cancellation fees, but DENIED as to all other items.  Thus, in addition to the costs owed by JMM ($133,085), Dakovic will also be liable for additional § 998 costs as follows: (rounded off to the nearest dollar)

 

Item 8:            $114,355

Item 16:          $ 993,816

 

Resulting in a net cost judgment against Dakovic in the amount of $1,241,256.

 

The Court Clerk is to add these amounts of costs levied against each respective Defendant to the final judgment.